9911796707
TMI Blog1996 (1) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of Section 11A of the Central Excises and Salt Act, 1944 (briefly, the Act) and why penalty should not be imposed upon it under Rule 173C of the Central Excise Rules, 1944 (for short, the Rules) for contravening the provisions of the various rules. 2. The contention of the petitioner is that by the impugned show cause Notice, respondent No.1 has called upon the petitioner to furnish wholly irrelevant details and that the notice is based on wholly irrelevant considerations. It is contended that under Section 4 of the Act which is a charging section, the duty of excise is chargeable on excisable goods with reference to value and that such value under Clause (a) of sub-section (1) of Section 4 shall subject to the other provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of each month with the proper officer showing the quantity of excisable goods manufactured or received under bond during the month, the quantity used within the factory for a manufacture of other commodity, the quantity removed on payment of duty from the place or premises specified under Rule 9 or from the Store Room or other place of storage approved by the Commissioner under Rule 47, duty paid on such quantity and the details regarding quantities removed on payment of duty, without payment of duty for export or otherwise. The RT-12 returns filed by HINDALCO during the year 1991 were summarised in respect of Aluminium and its products and they were produced before the respondents. 5.In para 3 of the impugned notice, it is stated that u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been removed without payment of Central Excise Duties. The extrusions have been shown as exported in excess of RT-12 by 48.558 M.T. As no duty is paid by HINDALCO in respect of quantities meant for export, the duty is recoverable under the provisions of Proviso to Section 11A of the Act in respect of excess quantities of Aluminium products removed from the factory as goods for export". (emphasis supplied). 6.From the averments made in Para 4 of the impugned notice, it is clear that the allegation against the petitioner is that duty of excise could not be correctly levied upon and was not correctly paid by the petitioner because (i) lesser quantity of ingots was shown to have been cleared as per RT-12 Returns; (ii) 13.756 M.T. of Alum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.1, it appears that the inquiry as to the production is relevant to levy correct duty. 9.In para 9 of the notice, respondent No.1 pointed out the discrepancy in the opening and closing balance. An inference was drawn that a quantity of 745 M.T. remained unaccounted for. Therefore, an inference was drawn that the petitioner cleared 745 M.T. of Aluminium metals clandestinely without payment of duty. 10.In paras 14 to 16 of the notice, it is averred that cost of production has been underestimated. It is incomprehensible as to what is the relevancy of the cost of production being underestimated. The excise authorities have nothing to do with the cost of production. The cost of production may be anything, since duty under Section 4 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 11A of the Act expired long before the date of the impugned notice. It appears that learned counsel for the petitioner lost sight of the proviso to sub-section (1) of Section 11A which states that where any duty of excise has not been levied or paid by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty by such person or his agent, limitation will be five years and not six months. Against the petitioner, wilful mis-statement, suppression of facts etc. have been pleaded and, therefore, the case is not prima facie, barred by limitation. It is, of course, open to the petitioner to co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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